( 1 ) THIS is an important point of procedure which requires to be settled by this court. The point arises in this way :

( 2 ) THIS is an application for winding up intended to be presented in the department of this court by the solicitors, Messrs. Orr, Dignam and Co. , who are representing petitioners, Franklin Square Agency Inc. , an American company.

( 3 ) THIS petition for winding up was signed by one Michael Michaelson, President and Principal Officer of Franklin Square Agency Inc. and verified by two affidavits sworn before a Notary Public, Elizabeth Levy of New York, U. S. A. , authorised to administer oath by laws of the State of New York, U. S. A.

( 4 ) SUCH notarial act of Elizabeth Levy has also been certified by the County Clerk and Clerk of the Supreme Court, New York County, a court of record under its seal. This certificate has been annexed to the affidavits verifying the petition. This has been forwarded under the certificate of the Consulate General of India in New York for legalising the seal of the Clerk of the County of New York.

( 5 ) NOW, the point of procedure arising for decision in these proceedings is whether such affidavits verifying the petition affirmed before a Notary Public of a foreign country can be accepted in this court.

( 6 ) THE office of this court, where the application was intended to be presented, felt certain difficulties in admitting this petition for winding up and therefore administratively sought the direction from this court. As the point raised is a point of considerable importance in matters relating to procedure, I adjourned the matter to court and issued a notice giving an opportunity to Messrs. Orr, Dignam and Company, the solicitors of the petitioners, to argue the matter fully so that this court will be able to determine judicially the question and settle the practice. Mr. Sankar Ghosh, learned counsel for the petitioner, has ably argued the matter before me.

( 7 ) THE difficulties which the office felt may be briefly summarised as follows: in the first place, Rule 16 of Chapter XV of the Original Side Rules of this court appears to exclude the U. S. A. from its operation because the rule runs as follows:" Affidavits sworn in England before any Judge, Local Court, Magistrate or Notary Public or any official empowered to administer oaths and bearing their respective seals, if any, will be accepted as sufficient in this Court and in all Courts and Tribunals subordinate to this Court. "

( 8 ) THIS rule was brought into effect from June 26, 1962, after the independence of India and after the proclamation of our Constitution. It is a relic of the past. It does not include affidavits sworn in the U. S. A.

( 9 ) THE second difficulty of the office is Section 139 of the Code of Civil Procedure. In that section of the Code it is provided as follows:" 139. In the case of any affidavit under this Code-- (a) any Court or Magistrate, or (b) any officer or other person whom a High Court may appoint in this behalf, or (c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, may administer the oath to the deponent. "

( 10 ) AS will be seen from those words of Section 139, Civil Procedure Code, the Notary Public is not a person competent to administer oath to a deponent under that section.

( 11 ) THE third difficulty of the office is Section 82 of the Evidence Act which expressly provides as follows :"when any document is produced before any court, purporting to be a document which, by the law in force for the time being in England and Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character, claimed by the person by whom it purports to be signed, the court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time

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